A Lawyer’s Duty Of Candor

Zealous representation can lead attorneys down a slippery slope right
up to the ethical edge

By Wendy Patrick Mazzarella

As attorneys, we are obligated to represent our clients to the best of our
ability. But is this duty absolute? Unfortunately, “zealous representation” can
be a dangerous concept and a slippery slope that takes us right up to the ethical
edge. How will we know when we have gone too far? This article and MCLE self-test
that follows are designed to help answer that question.

Attorneys are ethically bound by a duty of candor. This duty is codified by
statute, mandated by the California Rules of Professional Conduct, and reaffirmed
in case law. The duty of candor covers everything from false evidence, to witness
perjury, to citation of authority in court. Consider the following short hypotheticals
and corresponding authorities in preparation for the MCLE self-test.

Hypothetical #1: The Lying Witness

You are the prosecutor in trial on a murder case. Your sole eyewitness, Peter
Percipient, witnessed a fatal stabbing from across the street at night. Peter
explains that although he was close to the murder scene, he was not wearing
his prescription eyeglasses at the time and thus had a hard time seeing exactly
what happened.

You call Peter as your first witness. He identifies the defendant in court
and recites what he saw the night of the murder. Then to your dismay, Peter
explains to the jury that the reason he was able to see the murder so clearly
was because he was wearing his prescription eyeglasses at the time. Horrified,
you ask Peter again whether he is sure he was wearing his eyeglasses at the
time of the murder. Peter affirms that he was.

You confront Peter with his testimony at the next break. He is nonchalant,
avoids eye contact, and simply states that now he remembers things differently.
You believe he is lying. Ethically, what should you do?

Hypothetical #2: Client Perjury

Same facts as above, but now you represent the defendant. The prosecution
has just rested. During a last- minute discussion with your client regarding
whether he wants to testify, he throws you for a loop by declaring that he
intends to take the stand and lie in order to win the case. Knowing he has
the Constitutional right to testify, what do you do?

Hypothetical #3: Case Authority

On the morning you are set to argue a hotly contested motion, a last-minute
cite check reveals a new case that came out the day before that is relevant
to the issues in your case. Although the opinion is somewhat ambiguous, one
possible interpretation of the holding would contradict one of the propositions
you had planned to argue. When you get to court and meet in chambers, you realize
that you are the only one who has seen the new case. Given the case is so recent
and its ambiguity, what do you do?

CALIFORNIA RULES OF PROFESSIONAL CONDUCT

California Rule of Professional Conduct 5-200, Trial Conduct, states in pertinent
part that: in presenting a matter to a court, a member:

Shall employ . . . such means only as are consistent with truth;

Shall not seek to mislead the judge or jury by an artifice or false
statement of fact or law;

Shall not intentionally misquote authority to a court;

Shall not knowingly cite invalid authority.

Subsections (A) and (B) of Rule 5-200 apply to the first two hypotheticals
while subsections (C) and (D) apply to the third. Under no circumstances can
the duty to adequately represent a client take priority over the ethical duty
of candor. Regarding citation of authority, erring on the side of disclosure
is usually the prudent course of action. Case law can always be distinguished,
but it can never be misrepresented. The attorney’s duty to his or her
client does not permit him or her to misrepresent the current state of the
law in court, even when others in court are operating under a misimpression
of what the law is. The ethically required resolution of the hypothetical is
for the attorney to bring the adverse authority to the attention of the court
and explain, if possible, why it is distinguishable.

CALIFORNIA BUSINESS AND PROFESSIONS CODE

California Business and Professions Code §6068 defines the duties of
an attorney. Attorneys must only counsel or maintain just actions or defenses, “except
the defense of a person charged with a public offense.” (BP §6068(c))
Subsection (d) embodies the duty of candor by stating that it is the duty of
an attorney to “employ, for the purpose of maintaining the causes confided
to him or her those means only as are consistent with truth, and never to seek
to mislead the judge . . . by an artifice or false statement of fact or law.” Lest
these duties be taken lightly, California Business and Professions Code §6103
explains that a violation of a lawyer’s duties as an attorney may constitute
cause for suspension or disbarment.

The California Business and Professions Code specifies other types of punishment
for unethical attorneys as well. Section 6106 states that “[t]he commission
of any act involving moral turpitude, dishonesty or corruption, whether the
act is committed in the course of his relations as an attorney or otherwise
. . . constitutes a cause for disbarment or suspension.” And §6128
imposes misdemeanor criminal liability on a lawyer who engages in or consents
to any deceit or collusion “with intent to deceive the court or any party.” (BP §6128(a))
Punishment for violating this section is up to a six-month jail sentence or
a fine of up to $2,500 or both.

CALIFORNIA PERJURY STATUTES

Offering false witness testimony may have serious consequences beyond ethical
violations. It may be criminal. Representation of a client may not include
knowingly offering false witness testimony. (People v. Davis (1957)
48 Cal.2d 241, 257; In re Branch (1969) 70 Cal.2d 200.) Attempting to
benefit a client through perjured testimony may expose the attorney to severe
discipline as well as criminal prosecution under California Penal Code §127.
(Branch, supra, 70 Cal.2d at 210-11.)

Penal Code §127, Subornation of Perjury, states that: “Every person
who willfully procures another person to commit perjury is guilty of subornation
of perjury, and is punishable in the same manner as he would be if personally
guilty of the perjury so procured.” Penal Code §126 provides the
punishment for perjury as two, three or four years in state prison.

Refusal to offer client perjury is not ineffective assistance of counsel.
In Nix v. Whiteside (1986) 475 U.S. 157, the United States Supreme Court
held that an attorney does not render ineffective assistance of counsel by
refusing to participate in the presentation of perjury. The defendant in Nix,
preparing his claim of self-defense, told his attorney shortly before trial
for the first time that he saw “something metallic” in the victim’s
hand. (Id. at 160-61.) When asked about this late revelation the defendant
said “[i]f I don’t say I saw a gun, I’m dead.” (Id.
at 161.)

The defense attorney advised his client that if he planned to perjure himself,
he would tell the court and seek to withdraw as counsel. (Id.) The defendant
took the stand and testified truthfully, not mentioning the “metallic
object,” and was convicted. (Id. at 161-62.) The defendant
argued that he was denied a fair trial because he was admonished not to offer
the testimony that he saw a gun or “something metallic.” (Id.
at 162.) The court reviewed Strickland v. Washington, (1984) 466 U.S.
668, for the rule that to establish a claim of Sixth Amendment ineffective
assistance of counsel, “the movant must establish both serious attorney
error and prejudice.” (Id. at 164.)

After a thorough analysis under Strickland, the court stated that the
defense attorney’s handling of his client’s anticipated perjury “falls
well within accepted standards of professional conduct and the range of reasonable
professional conduct acceptable under Strickland.” (Id.
at 171.)

The Nix court discussed the viability of several different responses
to a client’s anticipated perjury. When faced with this situation, an
attorney’s first duty is to try to talk the client out of it. (Id.
at 169.) Other acceptable courses of conduct include disclosure to the court
after a client had given perjured testimony, and withdrawal when a client threatens
to offer such testimony. (Id. at 170.) The court recognized, however,
that withdrawal may raise issues regarding mistrial and potential double jeopardy
claims. (Id.)

The court recognized that a constitutional right to testify “does not
extend to testifying falsely.” (Id. at 173 [emphasis in original].)
Also, “the right to counsel includes no right to have a lawyer who will
cooperate with planned perjury. A lawyer who would so cooperate would be at
risk of prosecution for suborning perjury, and disciplinary proceedings, including
suspension or disbarment.” (Id.)

The attorney’s best ethical option under Hypothetical #2 is to permit
his or her client to give unguided narrative testimony. In People v. Johnson (1998)
62 Cal.App.4th 608, the trial judge did not allow the defendant to testify
after his attorney stated that he had an “ethical conflict” calling
the defendant to the stand. The appellate court found this to be error, and
said the defendant should have been permitted to testify through a narrative
approach, “which would have best accommodated the conflicting interests
of Johnson and his defense counsel.” (Id. at 634.)

The court cited Nix v. Whiteside for the proposition that attorneys
cannot ethically present perjured testimony. (Id. at 619 [citing Nix
v. Whiteside, supra, 475 U.S. at 166].) The court cited California Rules
of Professional Conduct 5-200, California Business and Professions Code §6068,
and ABA Model Rule 3.3 in support of an attorney’s duty of candor. (Id.
at 619-20.) The court then discussed the various approaches available to a
lawyer who has a client who wishes to perjure himself. (Id. at 620.) These
approaches include full cooperation, persuading the client to tell the truth, “free
narrative” testimony, disclosure to the court, moving to withdraw, and
refusing to permit the client’s testimony. (Id.) The court concluded
that the free narrative approach “represents the best accommodation of
the competing interests of the defendant’s right to testify and the attorney’s
obligation not to participate in the presentation of perjured testimony.” (Id.
at 629.)

*This article does not constitute legal advice. Please shepardize all case
law before using.

• Wendy Patrick Mazzarella is a San Diego County Deputy District Attorney
and chair of the San Diego County Bar Association Legal Ethics Committee.
She is a member of the State Bar Criminal Law Section Executive Committee,
and lectures on ethics throughout California, nationally and internationally.
She would like to thank Danny Eaton for his editorial work and contribution
to this piece. The views expressed in this article are her own.

Certification

This self-study activity has been approved for Minimum Continuing Legal
Education credit by the State Bar of California in the amount of one hour
of legal ethics.

The State Bar of California certifies that this activity conforms to the
standards for approved education activities prescribed by the rules and regulations
of the State Bar of California governing minimum continuing legal education.

Self-Assessment Test

Indicate whether the following statements are true or false after reading
the MCLE article. Use the answer
form provided to send the test, along with a $25 processing fee, to the
State Bar. If you do not receive your certificate within four to six weeks,
call 415-538-2504.

The attorney’s duty of candor is governed by statute but does not
appear in the California Rules of Professional Conduct.

The duty of candor about statements of fact and law applies to statements
an attorney makes to a jury as well as to a judicial officer.

The attorney’s duty to his or her client requires him or her to
avoid addressing authority that is adverse to a client’s position.

Violating the Rule of Professional Conduct prohibiting false statements
of law and fact will not subject an attorney to discipline in light of the
attorney’s countervailing duty to his or her client.

Under the California Business and Professions Code, violation of an ethical
duty may subject an attorney to disbarment or other discipline.

The client obtains no potential benefit from an attorney bringing controlling
authority to the attention of the court of which neither the court nor opposing
counsel is aware.

Attempting to offer a client’s perjured testimony may subject an
attorney both to discipline and criminal prosecution.

If an attorney knows his or her witness has lied on the stand and tries
unsuccessfully to clear up the false testimony through impeachment and further
questioning, the attorney is excused from having to bring it to the attention
of the court.

While procuring perjured testimony subjects an attorney to prosecution,
it does not subject an attorney to punishment by incarceration in the state
prison.

Refusal to present the perjured testimony of a client who wishes to exercise
his or her right to testify constitutes ineffective assistance of counsel.

An attorney need not disclose his or her client’s intention to present
perjured testimony if the attorney successfully convinces the client to testify
truthfully and the client does testify truthfully.

If a client proceeds with plans to present perjured testimony, his or
her attorney may not ethically threaten to withdraw as counsel.

An attorney may make a disclosure to the court of his or her client’s
perjured testimony after such testimony is presented.

It is ethically appropriate for an attorney faced with a client seeking
to testify falsely in his or her own behalf to allow the client to present
that testimony by an unguided narrative.

A lawyer has no chance of being disciplined if everything he or she tells
the judge is technically accurate, although it might be misleading in context.

The duty to counsel or maintain only those actions or defenses that appear
to be legal or just applies equally to all attorneys.

A lawyer has to be absolutely sure that a witness is going to testify
falsely before he or she tells the judge.

A lawyer who argues invalid authority is automatically guilty of violating
the California Rules of Professional Conduct.

It is not necessary for a lawyer to disclose a witness’ false testimony
if the witness has already been thoroughly destroyed through cross-examination.

A lawyer may face criminal charges for intentionally misquoting authority
in violation of California Rules of Professional Conduct 5-200(C).